Ensuring Impartiality through Identity-Neutrality Provisions: the Case of Freedom of Information in Brazil

The Internet has facilitated online services for citizens, but it has also facilitated Internet searches of service-seeking citizens by public officials, triggering conscious or unconscious bias. Via freedom of information (FOI) requests, academics provided evidence of this phenomenon at work. Brazil's Comptroller General (CGU) responded by implementing a check-box in its online FOI requesting system so that requesters could choose to remain anonymous. This innovation is a first for FOI regimes.

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In Brazil, as in many other countries, citizens must provide real names and identification numbers (ID requirements) when using public services, whether offline or online. In the case of freedom of information (FOI) laws, among other policies, ID requirements may deter citizens from requesting information, for fear of official reprisals. Indeed, intimidation, aggression, and even violence against FOI requesters are commonplace around the world, particularly in emerging democracies (see India’s Wikipedia page on RTI Assaults). ID requirements also facilitate 'identity-questing' (on the Internet) of service-seeking citizens by officials, resulting in preferential treatment - an affront to governmental norms of impartiality.
Researchers at the FGV-EBAPE (a university/think-tank) found strong evidence of identity-questing and preferential treatment after conducting a field experiment in which identical, FOI requests (with no identifiers in the request) sent to nearly 700 of the country's largest cities – asking for information pertinent to another study on FOI – resulted in high levels of preferential treatment for one among two set of identities (male/female & institutional/non-institutional affiliations). The study showed highly significant levels of preferential treatment in favor of institutionally-affiliated requesters, with these requesters boasting nearly 50% higher odds of receiving compliant responses than non-institutional requesters.
Based on these results and complaints of preferential treatment owing to ID requirements, in 2015 civil society representatives involved in developing Open Government Partnership plans with Brazil's Federal government formally requested protections to ensure identity-neutrality of FOI requesters. Brazil's Federal Comptroller General (CGU) responded by commissioning a report on ID requirements in FOI regimes and their impact around the world and in Brazil. After sharing this 2016 report with the Auditor General and the National Ombudsman's Office, among other agencies, the CGU was able to secure support for a check-box option for citizens to request anonymity. If citizens check the box, details of their identity remain with the CGU, and the request travels to the target agency with no personal identifiers. The innovation is the first of its kind in the world, and is expected to increase the use and efficacy of the federal FOI law.
The effort to secure identity-neutrality was no easy task. Brazil’s constitution includes a provision requiring that citizens identify themselves when making use of government services. Yet the CGU was able to advance the cause of identity-neutrality by a) arguing that citizens who seek accountable government must be protected under the aegis of ombudsman guarantees; and, b) advancing a new law (13.460), whose Article 10 guarantees new protections for citizens. Although impressed with the CGU’s commitment to open government and citizen demands, advocates fear that citizens who check the box as a means of remaining anonymous may trigger red flags among officials, resulting in discriminatory treatment. The optimum option would have all requesters remain identity-neutral by default, checking a box only if they wish to disclose their identity during the requesting process. After all, FOI is a fundamental right, according to UNESCO and the Organization of American States, among other international and regional organizations. Why should citizens be obligated to identity-themselves to practice a fundamental right?

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Year: 2018
Organisation Type: Academia

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